1998 PLP 1016 (SCMR)

MUHAMMAD TAQI USMANI, J.

These three connected appeals arise out of a complaint lodged by Mst. Khatoon Begum and having similar subject-matters are being disposed of together. The four appellants in these appeals were convicted by the learned Additional Sessions Judge, Rajanpur, vide his judgment dated 13-5-1990 under section 7 of the Qazf (Enforcement of Hudood) Ordinance 1979 (hereinafter referred to as the Ordinance) and were awarded sentence of eighty stripes each as Hadd. They were held guilty of levelling false charge of ' Zina' against the complainant Mst. Khatoon Begum. On their appeal before the Federal Shariat Court their conviction under section 7 was converted to section 11 of the Ordinance. The learned Federal Shariat Court held that the offence was not liable to Hadd, however, Qazf liable to Tazir was established against all of them, therefore, each one of them was sentenced to six months' R.I., 20 stripes and a fine of Rs.5,000 (Rupees five thousand) or a further R.I. for one month in the case of default in the payment of fine. Hence this appeal with special leave of this Court granted on 8th of March, 1992. The F.I.R. in this case was lodged in the Police Station Rajanpur on 2-7-1987 by Mst. Khatoon Begum wherein she stated that she was a retired teacher and belonged to a respectable family having good reputation and that on 2-7-1987 Rao Muhammad Farooq moved an application to the Police Station against her under sections JO and 11 of Zina (Enforcement of Hadood) Ordinance wherein he has levelled a false charge of Zina against her. She further stated that Ghulam Murtaza Shah (appellant in Jail Appeal No.29 (S)/1992), Zulfiqar (appellant in Criminal Appeal No.27(S)/1992) and Waris Ali (appellant No.2 in Criminal Appeal No.28(S)/1992) had sworn an affidavit on 23-7-1987 attested by Mr. Muhammad Bakhsh Khan, Oath Commissioner, Rajanpur, wherein they stated that they have seen the complainant committing Zina with Rao Sher Muhammad. According to her report the charge levelled against her was found false during investigation and was dismissed. She also stated in the report that Rao Muhammad Farooq has concocted a false Nikahnama purporting to have a legal marriage with her while she has registered another case against him for this concoction. For the correct understanding of the case of each one of the four appellants we will have to examine the case of Rao Muhammad Farooq and three other appellants separately. So far as the case of Rao Muhammad Farooq is concerned, the charge of Qazf against him is based on a complaint lodged by him to the S.P., District Rajanpur, Exh.P-F which reads as follows; Mr.Asghar Ali Sabzwari, learned counsel for Rao Muhammad Farooq, contended that this report does not in any way level any charge of Zina with consent against Mst. Khatoon Begum because the main thrust of this complaint is against Rao Sher Muhammad Khan who according to the complaint had abducted Mst. Khatoon Begum whom Rao Muhammad Farooq claims to be his wife and that the said Rao Sher Muhammad Khan was committing Zina-bil-Jabr upon her. The learned counsel pointed out'to the words used in the complaint which are clear to prove that Rao Muhammad Farooq did not blame Mst. Khatoon Begum to enter into illegal sexual intercourse, rather he blamed Rao Sher Muhammad Khan who was according to him forced her to indulge in the act, therefore, this complaint does not in any manner impute Khatoon Begum of Zina. The learned counsel contended that there is no other evidence on the record to show that Rao Muhammad Farooq had ever levelled a charge of Zina against her, therefore, the charge of Qazf against Rao Muhammad Farooq is totally baseless and misconceived and he deserves acquittal from the charge. On the other hand, Shaikh Khizar Hayat, the learned counsel for the respondent vehemently argued that although the direct accusation from Rao Muhammad Farooq was against Rao Sher Khan, however, the offense of Zina being a bilateral act it automatically involves Mst. Khatoon Begum also. He referred to the case of Jamil Hussain Shah v. The State (1997 SCMR 897) where it is observed that Zina is a bilateral act and if it is attributed to two particular persons both of them can claim to be the victim of offense of Qazf even though the initial complaint is only against one of them. This argument of the learned counsel did not impress us because the principle laid down in the cited case applies only to a situation where a person accuses another of Zina with consent of both parties. The relating observations in that case are reproduced hereunder: "Zinc with consent is a bilateral act and if it is attributed to two particular persons both of them can claim to be victims of offence of Qazf even though the initial complaint is only against any one of them." (Underlining is ours). The underlined words "with consent" in the above extract are sufficient to show that the principle relates to zina with consent only and does not apply to a situation where the charge of Zina-bil-Jabr is levelled against a particular person, because in that case, only that person can claim to be the victim of Qazf against whom it is alleged that he forced someone to commit sexual intercourse with him. As for the person who was alleged to be compelled for the commission of Zina, no crime is attributed to him, hence, he cannot in any way be held as the victim of Qazf. Since the complaint of Rao Muhammad Farooq, Exh.P.F does not accuse Mst. Khatoon Begum of committing Zina with her consent, she is not a victim of Qazf. It, is thus, clear that Rao Muhammad Farooq did not commit Qazf against Mst. Khatoon Begum and he deserves acquittal from that charge. The case of the other three appellants is a little different from that of Rao Muhammad Farooq. The charge of Qazf against them is based on the affidavits they submitted to the police on 23-7-1987 which have been placed on the record as Exh.P-C, Exh.P-B and Exh.P-D. In these affidavits all the three persons have stated that on 3-6-1987 they went to the house of Rao Sher Muhammad Khan to persuade him to return Mst. Khatoon Begum, wife of Rao Muhammad Farooq Khan, abducted by him.. When they reached the western room of the house, they found the door closed but not bolted. They entered the room and found Rao Sher Muhammad and Mst. Khatoon Begum in a naked position and committing sexual intercourse with each other. They also mentioned in the affidavit that Mst. Khatoon-Begum was not resisting and that she was committing the act wilfully. They also stated in the affidavits that as soon as they saw them in this position they came out .of the room because of shame and did not inform Rao Muhammad Farooq about this incident till 22-7-1987. These affidavits are proved on the record by the testimony of Mr. Muhammad Bakhsh, Advocate, P.W.3, who is an Oath Commissioner also. He testified that he attested these affidavits and that the accused persons present in the Court are the same persons who got these affidavits attested by him. The learned counsel for these three appellants (namely: Waris Ali, Zulfiqar Ali and Ghulam Murtaza Shah) contended that although these affidavits have a clear allegation of Zina with consent against Mst. Khatoon Begum, yet these do not amount to the offence of Qazf because they fall under the second exception of the definition of Qazf whereby an acusation of Zina before a person who has lawful authority over that person is excluded from the definition of Qazf. Since these affidavits were presented before the police in support of the complaint lodged by Rao Muhammad Farooq Khan and were never publicised or disclosed to any other person they were meant to have a legal proceeding started against Rao Sher Muhammad Khan etc. The learned counsel for the appellants further contended that if such statement made before the law enforcing agencies is held to be Qazf punishable under the Ordinance, no one can come forward to report an offence of Zina before these authorities. Therefore, all the appellants are protected by the second exception of the definition of Qazf given in section 3 of the Ordinance. On the other hand, W. Shaikh Khizar Hayat, learned counsel for the respondent, argued that the second exception of the definition of Qazf is subject to further three exceptions whereby it has been laid down that if an accusation of Zina made before the legal authorities is held to be false, the accuser cannot avail of the second exception, rather his accusation does fall in the definition of Qazf and is liable to the punishment accordingly. We have heard both the parties on these issues. In order to have a correct interpretation of the relevant legal provisions it will be necessary to study the language used in the second exception of section 3 of the Ordinance which is reproduced below: "Second exception (Accusation preferred in good faith to authorised person): Save in the case hereinafter mentioned, it is not ' Qazf' to prefer in good faith an accusation of ' Zina' against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation:-- (a) a complainant makes an accusation of ' zing' against another person in a Court, but fails to produce four witnesses in support thereof before the Court; (b) according to the finding of the Court, a witness has given false evidence of the commission of 'Zing-bil-Jabr'; (c) according to the finding of the Court, a complainant has made a false accusation of ' Zina' or Zina-bil-Jabr'. " This provision of law has been interpreted by this Court in the case of Jamil Hussain Shah v. The State (1997 SCMR 901) in the following words: "The words 'save in the cases hereinafter mentioned' are to the effect that the cases falling under sub-divisions (a), (b) and (c) cannot benefit from the protection given by the Second Exception meaning thereby that if a case falls within the ambit of either of the three situations mentioned in (a), (b) and (c) will make out the offence of Qazf even if the accusation is preferred to a person having lawful authority over the person against whom the accusation is made. " The argument of Mr. Sher Khizar Hayat, the learned counsel for the respondent, is that the case of these three appellants falls within the situation mentioned in sub-clause (b) of second exception because they were held liars during investigation. He referred to the statement of Shaukat Mahmood Bajwa P.W.8 wherein he has said: "On my recommendation the case was cancelled as I found the same false. " We are afraid that this statement will hardly help the learned counsel because it is merely a statement of a D.S.P. and not a finding of the Court while the language used in sub-clause (b) in second exception is the following:-- "according to the finding of the Court, a witness has given a false evidence of the commission of Zina or Zina-bil-Jabr. " (Underlining is ours). The underlined words are clear to establish that a case will fall under the mischief of sub-clause (b) of second exception only if a Court holds a witness of Zina a liar. In the instant case no proceedings could have ever started to decide whether or not these affidavits were false. Merely a remark of the D.S.P. cannot be held to be a finding of the Court, therefore, the appellants could not be held liars on the basis of this remark alone. It is, thus established that the case of these three appellants does not fall in any one of the sub-clauses (a), (b) and (c) of the second exception. We have now to see whether their case falls in the second exception. In order to benefit from the protection given in this exception two ingredients are to be established. Firstly, the accusation of zina against any person should be preferred to any of those who have lawful authority over that person with respect to subject-matter of accusation and secondly, this accusation must be in good faith. The affidavits under consideration were submitted to D.S.P., Rajanpur after Rao Muhammad Farooq had lodged a complaint in the same Police Station, therefore, these statements may be deemed to be statements under section 161, Cr.P.C. Undoubtedly, the police officials before whom these affidavits were submitted had lawful authority over Rao Sher Muhammad Khan and Mst. Khatoon Begum and to investigate their case. therefore, first ingredient of the second exception is available in the instant case. The only question which remains to be determined is whether the accusation made in this affidavit was in good faith so as to provide the second ingredient of the second exception. The words "in good faith" used in the Ordinance have been defined , in section 52 of the P.P.C. as follows: "Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention. " Although the law makers have defend this term to the best possible extent but the fact remains that no hard and fast rule can be laid down for deciding whether or not a particular act was done in good faith. In fact `good faith' is a state of mind which relates to the real motive or intention of a person while doing an act. This motive or intention is not visible through senses, therefore, it can only be inferred from general behaviour and conduct of 1 person in every case. If somebody is doing a lawful act or proceeding m a legal manner with due care and caution, the presumption would be that he has done that act in good faith unless otherwise is proved by the circumstances of the general behaviour and conduct of that person. Mr. Shaikh Khizar Hayat, learned counsel for the respondent submitted that the affidavits under consideration were not preferred in good faith because according to these affidavits, the three appellants saw the occurrence on 3-6-1987 but strangely enough they did not disclose this fact to Rao Muhammad Farooq, the alleged husband of Mst. Khatoon Begum up to 22-7-1987 which means that they remained silent about this occurrence for one month and about twenty days. This shows the mala fides of the appellants. Had they really seen the occurrence and were interested to inform the legal authorities, they should have done so soon after the occurrence, and should not have, remained silent for such a long time. This conduct of theirs shows that the accusations were not preferred in good faith. While attending to the argument of the learned counsel, we feel that another possibility cannot be ruled out. The evidence of the appellants about the alleged occurrence may be based on the apprehension that if it is disclosed to Rao Muhammad Farooq whom they believed to be the husband of Khatoon Begum, it will highly annoy him and adversely affect the marital relations of the spouses. But when they came to know that Rao Muhammad Farooq himself had filed a complaint against Rao Sher Muhammad Khan they came forward to support him because the matter was at that stage no secret for Rao Muhammad Farooq Khan. Obviously, where there are two equal possibilities attributable to the act of the accused/appellants, the one favouring them should be adopted. There is nothing on the record to show that the appellants publicised the accusation of Zina against the respondent or that they told about it to any person other than the police having lawful authority to conduct the investigation. Therefore, we do not find anything which may prove their mala fides in preferring the affidavits to D.S.P. and in the absence of such a proof their act should be treated as done in good faith. Therefore, after both the ingredients of second exception have been proved to be present in this case, the appellants are entitled to get its benefit and their act will not fall in the definition of Qazf. Before parting with this discussion, we would like to observe that the offence of Qazf and Zina are offences of very sensitive nature in Islamic Jurisprudence. If somebody accuses another person of Zina the matter must be decided either way. The accuser should be given proper opportunity to prove his accusation and if he succeeds in proving it, the person responsible for Zina must be punished but if he fails to prove his case through four witnesses when he is a complainant in a case of Zina (with consent) or is held to be a liar when he or she is a complainant in the case of Zina-bil-Jabr or a witness in the case of Zina or Zina-bil-Jabr, he may be subjected to proceedings of Qazf on the complaint of the accused-person according to law. But in any way all these results should come out through a Court of competent jurisdiction and it is only the Court which may decide the issues involved after adopting the legal procedure. The procedure of Islamic Courts throughout centuries was that the complaints of Zina and Qazf were directly brought to the Court which used to decide the case either way without the intervention of any non-judicial investigation. Therefore, no situation was envisaged where the complaint of Zina taken to a non-judicial investigating agency, does not reach the Court for decision or is dismissed by an agency which has no jurisdiction to try the case, leaving the issue unsettled through a Court of law, and thus the matters of Zina or Qazf were never left undecided. The system of our criminal procedure, however, is a little K different. Here almost very criminal case passes through a police agency. That is why in the instant case the complaint of Zina was lodged with the police, a non-judicial agency. So far there was no illegality, nor any violation of any Islamic principles, but unfortunately the police instead of forwarding the case to a Court of competent jurisdiction has dismissed it summarily, and thus, the issue remained unsettled in a Court of law". This position is totally against the concept of Islamic principles. Therefore, the investigation agencies should not take the complaint of Zina like other matters. Whenever such complaint is presented before the police, they must forward it to a Court of competent jurisdiction to decide the matter. Even if the charge contained in the complaint appears to them false, the order of dismissal must be sought from a Court competent to try the case, which may pass such order taking due care to the fact that it may entail proceedings under the Qazf Ordinance. In the case in hand Shaukat Mahmood Bajwa P.W.8 has admitted in his statement that he dismissed the case because it was false. First of all, he had no jurisdiction to hold the case false unless it is properly tried in a Court of law. The most he could do was to state that he did not find any evidence in support of the allegation. Secondly, if the case was false it might give rise to the question of Qazf which, in the present situation could not be decided without a finding of the Court in the matter of Zina. Therefore, in any case he should have forwarded the matter to a Court of competent jurisdiction. His failure to do so has created a situation where the issue is still un-resolved and the honour of the parties is still at stake. In order to avoid such a situation in future, the investigating agencies should forward every complaint of Zina or Zina-bil-Jabr to the Court of competent jurisdiction without fail. However, the legal position which emerges from the Ordinance has already been explained in the light of which no offence of Qazf has been made out against any one of the four appellants, therefore, all these appeals succeed and they are allowed. The appellants are on bail. Their bail bonds are discharged. A copy of this judgment shall be sent to the Secretary, Ministry of Interior, to take suitable steps to ensure that the investigating agencies comply with the guidelines provided herein. N.H.Q./Z-10/S Appeals allowed.